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Unpublished Paper
Using Occam’s Razor to Solve International Attorney-Client Privilege Choice of Law Issues: An Old Solution to a New Problem
ExpressO (2015)
  • Nathan M Crystal
  • Francesca Giannoni-Crystal
Abstract
The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the claim of privilege), the five remaining approaches all to a greater or lesser extent seek to determine, using a variety of factors, which jurisdiction has the most significant interest in having its law govern ACP. However, ultimately, these approaches all remain tethered to geographical factors. Does it make sense that the choice of law in ACP matters is still “anchored” to localization factors (for example, where the communication took place or whether the communication “touches base” with a certain jurisdiction)? We believe that it does not. Instead, we offer an approach that may seem to be ironic given the above criticism -- ironic because it seems the reverse of “delocalization.” We argue that in cases involving International ACP courts should apply the lex fori (in slightly modified form), but for policy reasons of fairness and efficiency, not based on protectionist or local preferences. First, in our view the lex fori approach (in our suggested “modified” version) avoids unfair results that would occur from applying approaches that point to foreign law. In almost all foreign countries the “rationale, scope, and limitations of the [professional] privilege are not so clearly defined” as the American counterpart, in significant part because almost all foreign countries do not have pretrial discovery. If a court applies foreign law dealing with ACP, it will almost always conclude that the privilege does not apply because of the absence or lack of development of the privilege in the civil law country. This result would be “unfair” because it would lead to the production of communications that would not be subject to production in a civil law country because of the absence or limitations on discovery in such countries. Second, use of the lex fori is a more efficient way of resolving ACP disputes in international matters. To illustrate this, allow us to borrow the principle of parsimony elaborated by the Franciscan friar William of Ockham (1287 – 1347): “Pluralitas non est ponenda sine necessitate,” which could be translated as “do not multiply actors if is not necessary.” The concepts of “privilege” in the US and in civil law countries are so different that it becomes a difficult and expensive task, often requiring the use of expert testimony, to understand what the foreign law says about the privilege. Moreover, trying to determine whether a certain communication would be protected from discovery in another country is pointless and artificial reasoning because American-style discovery does not exist outside of United States. Under our modified lex fori approach, it will only be necessary to obtain a certificate of good standing (or its equivalent) from the foreign country to determine whether a foreign lawyer is “enrolled in a bar” and therefore entitled to ACP, and then to apply the forum court’s ACP law. We argue that the better approach is for a court to ask whether a foreign document would be protected by ACP in the U.S. By asking this question, the court is using a more direct method that applies privilege concepts in connection with a system that recognizes discovery. We borrow again from Occam: “Frustra fit per plura quod potest fieri per pauciora (i.e. “It is pointless to do with more what can be done with fewer.”).
Keywords
  • attorney-client privilege,
  • international law,
  • conflict of laws,
  • lex loci,
  • touch base,
  • Restatement section 139
Publication Date
July 26, 2015
Citation Information
Nathan M Crystal and Francesca Giannoni-Crystal. "Using Occam’s Razor to Solve International Attorney-Client Privilege Choice of Law Issues: An Old Solution to a New Problem" ExpressO (2015)
Available at: http://works.bepress.com/nathan_crystal/36/